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SPEECH 



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ON.VOLNEYE. HOWARD, OF TEXAS, 



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ON THE 



ACQUISITION OF CUBA. 



DELIVERED 



IN THE HOUSE OP REPRESENTATIVES, JANUARY 6, 1853. 






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WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOEE OFFICE. 

1853. 



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CUBA. 



In the Committee of the Whole on the state of the 
Union, on the duty of the United States to take 
possession- of and hold the Island of Cuba- 
Mr. HOWARD said: 

Mr. Chairman: I have risen to address some 
remarks to the committee in reply to the observa- 
tions of the honorable gentleman from New York, 
[Mr. Brooks,] the other day, touching the course 
of the Administration in relation to the subject of 
Cuba. I think he has done great injustice both to 
the law and to the facts connected with the course 
of conduct pursued by the Administration, and that 
he has also done injustice to the American citizens 
who were the victims of Spanish cruelty connect- 
ed with this affair. It is manifest that the subject 
of Cuba is becoming one of great and growing 
national interest in this country. Its importance 
to my own State consists in this, that if Cuba was 
in the hands of an adverse or unfriendly maritime 
Power of any great strength, it would "be impos- 
sible for the States bordering on the Gulf of Mex- 
ico to get their products to market; our great 
staples must rot upon the wharves of our southern 
commercial cities. It is, therefore, a subject to ' 
which we must direct our attention and dispose of 
in some form or other. 

Now, sir, in relation to the expedition which 
was the subject of the gentleman's comments, I 
agree in one view expressed by him, and that is, 
that it was the duty of this Government to sup- 
press all illegal private enterprises against Cuba, 
or any other foreign country. And, sir, it gives 
me pleasure to be able to say upon this occasion, 
that the Administration of Mr. Polk did suppress 
an illegal expedition that was contemplated shortly 
after our late peace with Mexico, and into which 
an effort was made to draw our soldiers on their 
return. 

The letter of Mr. Buchanan, the Secretary of 
State of Mr. Polk, which has been so improperly 
published by this Administration, shows that that 
Administration interposed and suppressed a con- 
templated expedition against Cuba; that it issued 
directions to the officers of the army, and to all its 
civil officers who could act on the subject, direct- 



ing that measures be taken that any such ex- 
pedition should be suppressed. The measures 
adopted were efficient, and in this respect, the 
conduct of Mr. Polk's administration stands out 
in bold and honorable contrast with the course 
of his successors, for two such enterprises have 
since been set on foot, and descents upon Cuba 
effected in both instances. If the present Admin- 
istration did not permit this expedition to go out, 
they were at least guilty of great negligence in 
relation to the matter, for which they ought to be 
held responsible to a just public opinion. For, 
sir, I lake it to be an absurdity to say that this 
Government, with all its power, could not arrest 
an expedition confined to a single steamer. The 
use of ordinary Jiligenceand exertion would have 
prevented that expedition from going out. Gen- 
tlemen on the other side cannot, "therefore, accuse 
a Democratic Administration of this country of 
being negligent in relation to these expeditions 
against a neighboring Power; and in that respect, 
the Democratic party of this country stands in a 
much more favorable light, not only here, but else- 
where. 1 have no doubt that General Pierce will 
take efficient means to maintain and enforce the 
neutrality laws of the country. 

While I am upon this subject, I may as well 
refer to another question. I am in favor of the 
Monroe doctrine; but I am not inclined to sustain 
certain resolutions that have been introduced into 
the other branch of Congress by one of the great- 
est statesmen of the country, which gives a formal 
notice to the world, that when any foreign Power 
attempts to settle or colonize on this continent 
we will consider it an unfriendly act, a cause of 
war. I am not for abstract legislation on any 
subject. I do not see the propriety, by a joint 
resolution of Congress, of serving notice upon the 
wnole world, after the manner of Richard Roe 
and John Doe in an action of ejectment, that 
whenever a colonization establishment, or any 
other settlement, shall be made upon this continent 
by a European Power, it shall be immediately a 
cause of war. I think that abstract legislation in 
all instances, is improper. The court which 



4 



wanders beyond the record in deciding a case, in 
judicial proceedings, generally has to retrace its 
steps; and when the legislator attempts abstract 
legislation in advance of the times, he commits a 
fault still greater, and more inexcusable. I prefer 
that each case should be left to its own circum- 
stances. It is the part of wisdom to leave every 
case to be determined by its own circumstances. 
They will not only be a law for themselves, but 
find a means for their own peaceful Vtlution. To 
attempt to determine this matter by legislation is 
not compatible with the theory of our Government. 
In the first instance, it is more properly a question 
for the diplomacy of the Government; and in the 
next place, if diplomacy fails, it is a question for 
the war-making power. . To declare this policy 
by a law, in the shape of a joint resolution, would 
in a great measure take it out of the hands of our 
diplomatic agents, and limit the discretion of the 
President, to whose custody it has hitherto been 
confided. Sir, it must be apparent to every re- 
flecting man, that the European Powers are much 
more likely to quietly concede Cuba to us if we 
do not thus ostentatiously assert such a principle 
by legislation, than they are to acquiesce in this 
doctrine so broadly stated as it has been put forth 
in those resolutions to which I allude. It is rather 
calculated to irritate than to be of any practical 
benefit. 

But, sir, I do not think that the Senate reso- 
lutions state the Monroe doctrine fairly. The 
Monroe doctrine is, that if colonization upon this 
continent by European Powers shall endanger our 
safety, shall conflict with our great national inter- 
ests or peril our institutions, then it will be a cause 
of war; but it is not, as these resolutions seem to 
contemplate, that every settlement upon any sand- 
bank on this continent is an offense, which is to 
result in war. I am opposed to any declaration, 
by legislative enactment or by joint resolutions of 
Congress, which would compel us in honor to go 
to war if a European Power should happen to take 
possession of any unimportant or barren spot 
upon this continent. I am in favor of this doctrine, 
that whenever a European Power undertakes to 
make a colonial establishment here which inter- 
feres with our great national interests, our national 
safety, or our institutions, we will then resort to 
the last argument, if the last argument becomes 
necessary to free ourselves of the difficulty; but I 
do not go beyond that. I am in favor of a prac- 
tical enforcement of the doctrine when any neces- 
sary case shall arise. 

But, sir, I am opposed to these resolutions for 
another reason. They are inadequate to the sub- 
ject. They go upon the ground that we will not 
permit any foreign country to establish any settle- 
ment here; but at the same time that we permit 
present establishments to remain as they are, 
that we will never acquire Cuba without the con- 
sent of Spain. Now, I am at a loss to understand 
on what the Monroe doctrine, taking that view of 
the subject, is held to be based. If it has any 
sound basis, it must rest on a question of safety — 
that these colonial establishments interfere with 
our commerce and institutions, and endanger the 
stability of our Government. "Well, if any exist- 
ing establishment upon this continent interferes 
in the same way, and is pregnant with the same 
dangers, is there not as much reason that an ex- 
isting establishment shall cease as there is that a 



new establishment or colony shall not be created? 
The one principle is precisely as broad as the other, 
and controlled by the same reasons. Sir, it is not 
a sound principle of international law which is 
attempted to be asserted by the Senate resolves. 
The whole doctrine rests, and can be based upon 
nothing else than that we have a right, under the 
international code, to take all those precautionary 
measures which the safety of the nation requires. 
Therefore, sir, for one, while Cuba remains in its 
present position — while it remains quietly under 
the power of Spain — while its present domestic 
relations are continued and its internal policy 
does not endanger our safety — I see no necessity 
for our attempting any design upon it. 

But, on the contrary, if the projects of England 
should ever take a definite form, which have con- 
tinued from 1820 to the present time — if there 
should be danger that any great maritime power 
will take possession of Cuba, and thereby dis- 
turb our safety, by locking up the commerce of 
the Gulf, including as it does that of the valley of 
the Mississippi and eight or ten States, then , under 
the international code as laid down by Vattel, 
Wheaton , and others, and as the principle has been 
stated by Chancellor Kent, we would be justified 
in taking possession of Cuba, although we might 
in justice and fairness be afterwards compelled 
to make a fair compensation for it to Spain, if the 
necessity for such a measure was created without 
any fault on her part, and if her conduct towards 
us had been fair and just. 

Chancellor Kent thus states the rule on this sub- 
ject: 

" Every nation has an undoubted right to provide for its 
own safety, and to take due precaution against distant as 
well as impending danger. The right of self-preservation 
is paramount to all other considerations. A rational fear 
of an imminent danger is said to be a justifiable cause of 
war." — Kent, Vattel, b. 2, c. 4, section 49, 50. 

I can well conceive that that necessity will 
probably arise. If any one of the great European 
Powers were to attempt to possess themselves of the 
Island, or if they were to attempt, what has been 
threatened, to change the institutions of the Island 
so as to make it a second St. Domingo, with a view 
of striking a blow at slavery in the United States, 
and thereby endanger the peace and security of 
the slave States upon the Gulf, then it would be 
the duty of this Government to interfere, and take 
possession of the Island and hold it as an Ameri- 
can State or an American province. 

The southern States on the Gulf would never 
permit Spain, as a matter of revenge in the case of 
a revolution by the Creoles, to abolish slavery in 
that Island, with a view to the destruction of the 
planters. They cannot permit such an example 
to be successful so near their shores. The instinct 
of self-preservation is too strong. This measure 
was threatened during the invasion of Lopez; it 
never can succeed so long as slavery exists in the 
United States; and any attempt of that sort, either 
by Spain or any other Power, will be followed by 
an immediate seizure of the Island, either by this 
Government or by the slave States on the Gulf of 
Mexico. There is no principle of international 
law that would require a great Government like 
the United States to permit itself to be thus 
assailed through a small colonial dependency of 
another and distant Power. England has been 



very prompt to protect herself from like dangers 
by at once taking possession of the point of dan- 
ger. If Cuba had been as near her possessions 
as ours, she would have seized it long since on 
half the provocation. 

On what principle do the British hold Gibraltar, 
Malta, and several other strong positions, which 
give them control over the commerce of the world ? 
Why, they have assumed them as being necessary 
to the protection of their own commerce. Upon 
this question of necessity, the policy of the Gov- 
ernment is well settled, if Cuba should ever pass 
from the dominion of Spain ..to that of any other 
Power. The danger to be apprehended to this 
country and its institutions from the acquisition of 
Cuba by any other Power, as well as the intrigues 
of England in relation to the subject, have been 
pointed out and made the subject of comment by 
nearly every Administration for more than thirty 
years. These dangers were 'suggested by Mr. 
Adams while Secretary of State in 1822, in his 
official dispatches to our Minister to Madrid. In 
his dispatch to Mr. Forsyth, he says: 

"The present condition of the Island of Cuba has excited 
much attention, and has Jiscome of deep interest to this 
Union. From the public dispatch and other papers which 
you will receive with this, you will perceive the great and 
continued injuries which our commerce is suffering from 
pirates issuing from thence, the repeated demands made 
upon the authorities of the Island for their suppression, and 
the esertions, but partially effectual, of our own naval force 
against them."' * * * " From various sources intima- 
tions have been received here, that the British Government 
have it in contemplation to obtain possession of the Island." 
* * * " There is reason also to believe that the future 
political condition of the Island is a subject of much anxiety 
and of informal deliberations anvwig its own inhabitants; 
that both France and Great Britain have political agents 
there, observing the course of events, and perhaps endeavor- 
ing to give them different directions." t 

In hi? dispatch of April, 1823, Mr. Adams again j 
comments upon the designs of England, witlTref- 1 
erence to the Island; upon the impossibility of its ! 
inhabitants maintaining an independent govern- 
ment, alleging, that " their only alternative of de- ! 
pendence must be upon Great Britain or upon the 
United States." In commenting upon the neces- 
sity of Cuba to the United States, he says: 

"Such, indeed, are, between the interests of that Island 
and of this country, the geographical, commercial, moral, 
and political relations, formed by nature, gathering in pro- 
cess of time, and even now verging to maturity, that, in 
iooking forward to the probable course of events, for the 
short space of half a century, it is scarcely possible to resist 
the conviction that the annexation of Cuba to our Federal 
Republic will be indispensable to the continuance and in- 
tegrity of the Union itself." 

After Mr. Adams was elevated to the Presidency, 
he maintained his policy in relation to Cuba, which 
was substantially repeated to our Minister to Spain 
in 1825, by his Secretary of State, Mr. Clay. In 
1827, our Minister to Spain, Mr. A. H. Everett, 
gave information to the Government of an effort 
of England to revolutionize Cuba, based upon a 
dispatch of the Spanish Minister at London. The 
Spanish Minister admitted to Mr. Everett, that 
his Government had received information of the 



| efforts of England. Mr. Everett says in his dis- 

| patch of December 12th, 1827: 

" I then mentioned to Mr. Salmon that, according to the 
information which the Government of the United States 
had received, the object of the plan was to place the Island 
under the protection of Great Britain ; but that the form of 
a declaration of independence was to be adopted, in order 
to avoid awakening the jealousy of the United States; that 
the United States would not, of course, be deceived bythis 
artifice ; that they could not view with indifference these 
movements of the British Government, considering it, as 
they did, as a settled principle, that the Island must in no 
event pass into the possession of, or under the protection of 
any European Power other than Spain." 

Mr. Van Buren, as Secretary of State, in 1829, 
in his dispatch to our Minister to Spain, alluded 
to the designs of England and France with refer- 
ence to Cuba and Porto Puco. With reference to 
the importance of the former to the United States, 
he said : 

"The Government of the United States has always 
looked with the deepest interest upon the fate of those 
Islands, but particularly Cuba. Its geographical position, 
which places it almost in sight of our southern shores, and, 
as it were, gives it the command of the Gulf of Mexico and 
the West India seas, its safe and capacious harbors, its rich 
productions, the exchange of which, for our surplus agri- 
cultural products and manufactures, constitutes one of the 
most extensive and valuable branches of our foreign trade, 
render it of the utmost importance to the United States, 
that no change should take place in its condition which 
might injuriously affect our political and commercial stand- 
ing in that quarter. Other considerations, connected with 
a certain class of our population, make it the interest of 
the southern section of the Union that no attempt should 
be made in that Island to throw off the yoke of Spanish de- 
pendence, the first effect*of which would be the sudden 
emancipation of a numerous slave population, the result 
of which could not but be very sensibly felt upon the adja- 
cent shores of the United States." 

Mr. Forsyth, as Secretary of State, in his dis- 
patch in 1840, repeated the views of his predeces- 
sors, and warned our Minister to be on the look-out 
against the designs of England on Cuba, of which 
the Governmemvhad been advised. Mr. Webster, 
in his dispatch as Secretary of State, to our Min- 
ister to Spain, says: 

"The archives of your legation will show you that the 
subject of the supposed designs upon the Island of Cuba by 
the British Government is by no means new, and you will 
also find that the apprehension of such a project has not 
been unattended to by the Spanish Government." 

In January, 1843, Mr. Webster communicated 
to our Consul at Cuba, the contents of a communi- 
cation which he had received from a " highly re- 
spectable source," as to renewed designs of Eng- 
land upon Cuba. The writer makes statements 
about the designs of the British Ministry and 
British abolitionists, to bring about a revolution in 
Cuba, and erect it into a " black military repub- 
lic, under British protection." Pie remarks, says 
Mr. Webster, "if this scheme should succeed, the 
influence of Britain in this quarter, it is remarked, 
will be unlimited. With six millions of blacks in 
Cuba, and eight hundred thousand in her West 
India islands, she will, it is said, strike a death 
blow at slavery in the United States. Intrenched 



6 



at Havana and San Antonio, posts as impregnable 
as Gibraltar, she will be able to<elose the two en- 
trances to the Gulf of Mexico, and even prevent 
the free passage of the commerce of the United 
States over the Bahama Banks, and through the 
Florida channel." And although Mr. Webster 
says the Government neither indorses nor rejects 
these views, they are so stated by him as to show 
that they made a deep impression on his own 
mind. <• 

It is apparent from all this correspondence, that 
it is the settled policy of the Government that Cuba 
is not to pass from Spain without coming under 
our own jurisdiction, and that the Island is not in 
a position to permit it to be an independent gov- 
ernment without making it dtingerousto our com- 
merce, institutions, and national safety. Since 
this correspondence, our immense Pacific com- 
merce has arisen, which passes within siffht of 
Cuba. 5 

A very accomplished officer of the Navy, 
Lieutenant Dalghren, in his report on the subject 
of fortifications, has expressed an opinion, which 
is obviously true, that, with all the fortifications 
we can place on our coast, we cannot protect our 
commerce in the Gulf of Mexico, with Cuba in 
the possession of a hostile Government. Indeed, 
Cuba is far more necessary to us, than Gibraltar 
or Malta is to England. 

Mr. Dalghren says: 

"The true and only key, however, to the defense of these 
shores and to the immense interest there collected, is the 
Havana. The island to which it belongs enters its western 
extreme into the Gulf, leaving but two passages for vessels, 
so narrow as to be commanded with the greatest facility; 
these are the great thoroughfares of trade, and the mail 
steamers from New Orleans to California and New York. 
Hence if the use of the Havana be even at the disposal of 
an enemy while in the hands of a neutral Power, each and 
all of these intenests could be with difficulty defended, even 
by a superior naval force, and never guarantied against 
severe losses. While from it, as a United States port, a 
squadron of moderate size would cover the southeast and 
Gulf coasts, protect the foreign and inshore traders, and se- 
cure the lines from New Orleans or New York to the Pa- 
cific States by way of the Isthmus— its, occupation would 
necessarily be the object of every expedition, military or 
naval, preliminary to any attempt on the southern trade or 
territory." 

The rule of international law for which I am 
contending, is thus stated by Mr. Wheaton: 

" Of the absolute international rights of States, one of 
the most essential and important, and that which lies at the 
foundation of all the rest, is the right of self preservation. 
It is not only a right with respect to other States, but a duty 
with respect to its own members, and the most solemn and 
important which the State owes to them. This right neces- 
sarily involves all other incidental rights which are essen- 
tial as means to give effect to the principal end." 

The European Powers are estopped from deny- 
ing the application of this doctrine in its fullest 
extent, by having repeatedly acted upon it. By 
the treaty of Utrecht the French Government 
was compelled to demolish the fortifications at 
Dunkirk, because dangerous to others. By the 
treaty of Paris of 1815, France was compelled to 
demolish the fortifications of Huningen, and agree 
never to renew them, because dangerous to Basle. 



The doctrine of self-defense and self-preservation 
was the alleged justification of the combination of 
the Protestant Powers against Louis XSV., and 
for all the coalitions formed by the allied Powers 
against France, and more recently for the Con- 
gress of Troppau and Laj'bach, in relation to 
the Neapolitan revolution in 1820; for the Con- 
gress of Verona in relation to the affairs of Spain, 
and one of the grounds for British interference 
in the affairs of Portugal in 1826; for the interfer- 
ence of the Christian Powers in favor of Greece, 
principally on the ground that the contest en- 
couraged piracies, and interfered with commerce; 
for the interference of Austria, Great Britain, 
and Russia, in the affairs of the Ottoman Em- 
pire in 1840. I do not mention these instances 
with approbation, but to show the existence of the 
right in a proper case, and that neither England, 
France, nor Spain, can complain of its exercise. 
England has seized possession after possession in 
India, on the ground that each instance was neces- 
sary to the preservation of her other possessions 
in that country. 

The right of a government to take all necessary 
measures for its safety and self-defense consistent 
with reason and justice to other Powers, is stated 
more strongly by European writers than by our 
own. Vattel asserts that "since, then, ever)' nation 
is obliged to preserve itself, it has a right to every- 
thing necessary to its preservation." * * * "A 
nation or State has a right to everything that can 
help to ward off imminent danger, and keep at a 
distance whatever is capable of causing its ruin; 
and that from the very same reasons that establish 
its rights to the things necessary to its preserva- 
tion." 

Cuba is even now in a transition state. It cannot 
continue long in its present condition. Revolts 
will continually occur there, for the seeds of lib- 
erty have been sown in that devoted Island. The 
people will be restive under the onerous and op- 
pressive exactions of Spain. With the present 
commercial policy of that country, the revenues 
collected from the Island will not pay the army 
and navy necessary to keep the people in subjec- 
tion. It is not, therefore, in my opinion, possible 
for the Island to long remain a dependency of 
Spain, and we can never with safety permit it to 
pass out of her dominion without becoming a 
portion of the United States. Cuba requires out- 
utmost vigilance. The effort of England and 
France to induce us into a treaty in relation to the 
Island; the fact that those Powers combined to., 
place fleets there under pretense of guarding its 
coast; the fact that England has assumed to erect 
a colony on the islands off the coast of Central 
America, and lias now a considerable fleet in the 
Gulf and off the coast of Cuba, under the pretense 
of arresting the slave trade, all demand our vigi- 
lance, and preparation for any emergency. There 
is no doubt that, since the discovery of gold in 
Australia, England has, with increased interest, 
turned her attention to the Gulf of Mexico and 
the Isthmus, as a line of communication with her 
Asiatic possessions. We have been made to feei 
her power and weight in Mexico, in connection 
with the Tehuantepec route. 

I dissent altogether from the position of the 
President that it would be inexpedient for us to 
acquire Cuba, if Spain consents to our acquiring 
it by treaty or purchase. I hold that it is our 



I 



highest national interest to become the possessor 
of that Island as soon as we can by cession from 
Spain. I cannot see the danger of sectional agi- 
tation from its acquisition which is anticipated by 
the President. There are ten men in the United 
States now in favor of acquiring Cuba, where there 
was one in favor of the annexation of Texas at the 
time of the Tyler treaty. The commercial class of 
the North generally are in favor of the measure as 
soon as it can be honorably accomplished. It is 
obvious that the northern States would be largely 
benefited by it in a commercial point of view. It 
is, in my opinion, a great mistake to suppose the 
acquisition of Cuba would give rise to any fresh 
agitation of the slavery question. If the Island 
were in our possession, we should effectually sup- 
press the slave trade, and to that extent, its trans- 
fer to us would not only diminish slavery, but 
arrest a traffic which results in an annual loss of 
the lives of colored persons, nearly, if not quite 
equal in number, to those reduced into slavery by 
the trade. If Cuba were converted into a black 
republic, it would soon become a mere harbor for 
pirates, and the northern States would be the 
first to cry for the acquisition of the country. 
There is no danger that the North would risk the 
consequences of rejecting Cuba. They have too 
much interest in the preservation of the Union; far 
more than the South. Their whole commercial 
and manufacturing prosperity rests upon it. We 
have passed that crisis for the present century. 

Neither is there any danger from the character 
of the population in Cuba. With the aid of the 
thousands which would flock there from every 
portion of the United States, they would have no 
difficulty in working our system. The admission 
of a free press, and the Protestant religion, would 
work wonders in the Island in a short time. 

I will proceed now to the course of the Admin- 
istration, which was the subject of the remarks 
Gf the honorable gentleman from New York, [Mr. 
Brooks,] the other day, touching the treatment 
which the prisoners taken in the Lopez expedition 
received by the Spanish authorities of the Island. 

I repeat, that I am not a defender of the Lopez 
expedition, nor of any similar adventurers. But 
there are many things to be said in extenuation of 
that unfortunate occurrence. Cuba is, no doubt, 
oppressed by one of the worst governments oh 
earth. It is more arbitrary than that of the Czar, 
and less humane because it is governed by officers 
from Old Spain, whose object is to amass wealth 
by oppressing the people by burdensome and oner- 
ous exactions. General Lopez, an ardent lover of 
liberty, was inspired with the ambition of freeing 
his country from this intolerable despotism. He 
pursued his high purpose with an energy, perse- 
verance and courage, worthy of a better fate. He 
missed the fame and renown of one of the liber- 
ators of the asre, only because his efforts were un- 
fortunate. While the leader of a revolution is 
canonized by success^ the unfortunate conspira- 
tor is covered with obloquy, and his name shroud- 
ed in disgrace. Narciso Lopez perished ignomin- 
iously by the garote, but his blood watered a soil 
that will yet bear the fruits of liberty, and a mon- 
ument to his memory will hereafter be erected over 
the spot where he fell, by the hands of freemen. 
Every revolution generally has a victim before 
success. 

It has been the policy of the authorities of Cuba 



to represent that the Creoles of the Island did not 
sympathize with the movement of Lopez. But 
the reverse is well known; an extensive revolt was 
at one time planned and organized. That is 
proved by the multitude of arrests and banish- 
ments, by the fact that all the prisons in the Island 
were crowded to overflowing. After the failure 
of the first expedition this organization was, to a 
great extent, broken up. A reorganization took 
place just before the second expedition of Lopez, 
and at one place, at least, a declaration of inde- 
pendence was promulged. There is no doubt that 
the extent of this movement was greatly exagger- 
ated, and that the revolt was by no means as ex- 
tensive as a sanguine man like Lopez was easily 
led to suppose. He was also made the victim of 
a stratagem by the government of Cuba. It is 
now known that he received letters written at the 
instance of the government assuring him he had 
only to show himself with a few followers, and 
that the population would flock en masse to his 
standard. It was this impression, no doubt, that 
caused him to set out with so small an expedition. 
Had he landed with two thousand men and a few 
pieces of artillery, there is no doubt that the enter- 
prise would have been entirely successful. But 
when the Creoles saw that he had made a descent 
with only four hundred men landing in the vicinity 
of Havana, they perceived at once that all was lost, 
and abandoned a movement which they believed 
could not maintain itself against the Spanish forces 
on the Island. 

There is no question that Lopez and his men 
believed they were going in aid of an extensive 
revolt, and a well organized revolution. The ex- 
pedition was not undertaken in the spirit of aggres- 
sion and plunder, but with a sincere desire to aid 
the cause of liberty. The expedition succeeded in 
getting out of our ports and failed, and the Ameri- 
cans embarked in it having been taken prisoners, I 
maintain were entitled to the trial secured to Amer- 
ican citizens by the treaty of 1795, with Spain. Now 
I ask if they received that trial in any aspect of the 
case? It will be seen by the official correspond- 
ence, and also by the report of Commodore Parker, 
based upon conversations held with the Captain 
General of Cuba, as well as from the other cor- 
respondence which took place, and which may 
be found among our official documents, that the 
authorities of Cuba place the right they had to 
punish these men by trying them by the tribunals 
which did try them, and by denying them counsel 
as they did, entirely upon the ground that they 
were pirates. Now, I undertake to say, that no 
respectably adjudicated case can be found which 
will sustain the position that these men were 
pirates. What is a pirate? A pirate, according 
to the definitions of the writers on international 
law, is a robber upon the high seas. Such also is 
the definition of the Spanish law writers. 

Piracy, says Chancellor Kent, is robbery, or a 
forcible depredation, on the high seas, without law- 
ful authority, and done animo furandi, and in the 
spirit and intention of universal hostility. The 
Supreme Court of the United States has also de- 
fined the crime to be robbery upon the high seas; 
which is the universal definition of the writers on 
international law in modern Europe, including 
those of Spain. The offense of the Lopez men 
was not upon the high seas, nor done animo fu- 
randi, and no other piracy is known to the law of 



« 



8 



nations. Neither was it piracy within the defini- 
tion of the offense given by the acts of Congress. 

Now, sir, you know the principles of interna- 
tional law are founded upon usage, upon treaty, 
and upon custom, and require the usage of more 
than one nation to ingraft upon them a single princi- 
ple. That is a well-received doctrine, which has 
been recognized by the Supreme Court of the 
United States in passing upon one of the acts of 
Congress which assumed to add to the interna- 
tional code. The same principle has been'recog^ 
nized by the leading Powers of Europe with ref- 
erence to the slave trade, which cannot be held 
piracy apart from treaties. Spain could not make 
these men pirates by its own declaration; if they 
were not pirates under the laws of nations, they 
could not be punished as pirates. I am aware 
that there are some elementary writers who have 
said that in unlawful expeditions like this, where 
the men are taken prisoners, they are to be treated 
as pirates and robbers, not entitled to the laws of 
war. But this is to be taken with qualifications; 
for the proposition as applied to these prisoners, 
is not supported by a single English or American 
adjudication. When they commit robbery, they 
should be punished as robbers; when they commit 
piracy, they should be treated as pirates; and 
when they commit murder, they should be pun- 
ished as murderers. 

Such was the language of Mr. Clayton, under 
the administration of General Taylor. He did 
not admit that the Contoy prisoners were pirates. 
On the contrary, he asserted, in relation to all of 
them, and especially the Contoy prisoners, that 
tliey had not committed the offense of piracy, and 
could not be punished as pirates, remarking that 
murder and robbery were grave offenses, but not 
piracy. When the State of New York arrested I 
McLeod for his expedition into that State, and ! 
the destruction of the Caroline, he was not tried | 
for piracy, but, as homicide had been committed, \ 
he was tried for murder, and given a regular trial I 
in all the forms of law. It is true, that Judge | 
Cowan, in passing upon the case, cited those au- 
thorities which allege that persons engaged in these 
expeditions might be treated as robbers and pirates. 
These citations were not long since published in 
one of the papers in this city; but the learned New 
York Judge did not rely on them as authority in 
point. And when examined, it will be found that 
all they intend to assert is, that if the offender 
commits robbery, he may be punished as a rob- 
ber; and if piracy, as a pirate. He is not entitled 
to the benefit of the laws of war, a position which 
will readily be conceded. I do not say that the 
Spanish officers were bound to admit these men 
to quarter, if they had been taken in conflict with 
arms in their hands; but having given quarter, 
having received them as prisoners, they were en- 
titled to the rights of American citizens. The fifty 
men under Crittenden, who were taken and shot, 
had not arms in their hands when they were cap- 
tured. They were endeavoring to make their 
escape from the Island in two boats, as I have 
been informed by good authority. The men were 
in one boat, and the arms in another, which prob- 
ably accounts for their surrender. As Ameri- 
can citizens, then, guilty, not of piracy, but of an 
offense against the neutrality laws of this country, 
and at most a conspiracy against Spain, they were 
entitled to a trial. I concede that, as foreigners, 



they might commit treason against Spain , although 
that has been denied; but I think the affirmative of 
the proposition the better opinion. Still, they were 
American citizens, entitled to the benefit of the 
treaty of 1795 with Spain, which declares: 

" And in all cases of seizure, detention, or arrest for debts 
contracted, or offenses committed by any citizen or subje«5 
of the one party within the jurisdiction of the other, the 
same shall be made and prosecuted (' pororden y autoridad 
de lajusticia,') by order and authority of law only, and ac- 
cording to the regular course of proceedings usual in such 
cases." 

It will be seen that the language of the treaty 
is very broad, and applies to any citizen or 
subject who has incurred seizure or detention for 
" offenses committed." It is clear these Ameri- 
can citizens were seized and detained within the 
meaning of the treaty. How, then, were they to 
be prosecuted? " By authority of law only, and 
according to the regular course of proceedings 
usual in such cases." Such language in a statute 
in England or this country, would beheld to guar- 
anty to the accused a trial according " to the law 
of the land," which, since the days of Lord Coke, 
has been held to mean a trial by the course of 
the common law, by presentment or indictment, 
and a jury. In Spain they have no juries, but 
the language of the treaty evidently contemplates 
a trial in the regular course of proceedings accord- 
ing to the civil laws of Spain. Their lawyers 
and books draw a wide distinction between the 
proceedings of what they term the ordinary 
and extraordinary tribunals. Civil courts are 
held by them to be ordinary tribunals, military 
and ecclesiastical courts are extraordinary tribu- 
nals, and not the regular course of proceeding, 
under their law, any more than a court-martial is 
our regular course of proceeding. This is still 
more apparent by reference to the Spanish side of 
the treaty, which our Supreme Court held in the 
case of Clarke, to be the true exponent of the 
provision of another treaty with Spain, when it 
alluded to Spanish law and proceedings, and even 
corrected a construction which the court had 
previously given to the English article in the 
treaty. 

The Spanish side declares that American citi- 
zens shall be arrested and prosecuted " por orden 
y autoridad de la justicia." Justicia is ordinarily 
rendered justice; but in this instance, and gener- 
ally when used with reference to judicial proceed- 
ings, is more properly translated judicature. The 
word in Spanish is of a much more technical 
meaning than law, which is used as the English 
equivalent in the treaty. The Spanish authors, 
when they use the word with reference to the ad- 
ministration of justice, apply it to the course of 
proceedings in the civil tribunals. And such is 
evidently its sense in this treaty. That such was 
the intention of the treaty, is apparent from the 
dispatch of Mr. Pinkney, a profound lawyer, 
who negotiated it, and who said it was a proper 
provision in treaties with all such countries as 
Spain. It is evident that he supposed he had se- 
cured to his countrymen in Spain, a regular trial 
in the civil courts in all cases. The object of 
this provision of the treaty was to rescue the citi- 
zens of the United States from these extraordi- 
nary and arbitrary tribunals; from these military 
and ecclesiastical courts, which had been the dis- 



9 



grace of the age, and the scandal of Christendom. 
At all events, it was the duty of the Administra- 
tion to contend for a reasonable construction of 
the treaty, which secured a fair trial to American 
citizens. 

The construction put upon the treaty by the 
gentleman from New York cannot be sustained. 
His construction is, that these citizens of the Uni- 
ted States were tried and punished in the same 
manner as Spanish subjects, and therefore they 
and their friends had no right to complain. Why, 
sir, it was to avoid that very thing that the treaty 
was made. It was to avoid the necessity of the 
citizens of the United States being subjected to these 
infamous military and ecclesiastical tribunals that 
this clause in the treaty was inserted; and the 
construction that is now attempted to be put upon 
it, would destroy the whole force and virtue of the 
guarantees of the treaty. 

Again, the trial by a summary court-martial, 
was a violation of the treaty; because Spanish sub- 
jects could not, under the laws of Spain, be tried 
for treason in those cases where the arrest was 
made by military authority; they may be tried by 
the ordinary council of war, which is a permanent 
tribunal, but not by a summary court-martial. 
The trial was not therefore the regular proceeding 
in such cases even for Spanish subjects, and in 
this respect was a violation of the treaty, — a point 
I shall present more fully in connection with the 
case of Mr. Thrasher. 

Sir, the Spanish authorities attempted to evade 
the force of this treaty, as I have said, by declaring 
that these men were pirates, who were not pirates 
according to international law. It was only by 
holding that they were citizens of no country, but 
the common enemies of mankind, that Spain could 
shield herself from the charge of having violated 
the provisions of the treaty of 1795. If you will 
look at the report of Commander Parker, who 
was sent to Cuba by the President to investigate 
this affair, you will find that the Captain General 
places his justification upon that, ground almost 
exclusively in his first interview with Commander 
Parker; and you will see furthermore, by looking 
at the report, that the Captain General did not pre- 
tend that they had a regular or legal trial — not even 
that they had a regular trial before a military com- 
mission. He admitted that the trial was summa- 
ry. Commander Parker thus reports his interview 
with the Captain General: 

"He stated that he considered them as pirates, and that 
they had been so denounced in the proclamation of the 
President of the United States. That they were tried in a 
-summary manner, and full proof made of their guilt, and that 
of their participation in the invasion of the Island by Lopez. 
He did not consider himself at liberty to furnish ine with 
the proceedings on the trial, but would send them to his 
own Government, and to the Spanish Minister at Washing- 
ton, who would do whatever was right in the matter, on the 
call of the Government of the United States." 

Where is this, no doubt, ex post facto record ? 
Why, sir, I marvel that any gentleman in this 
House should call it a trial. Those men were ar- 
rested one day and shot the next. Fifty men were 
brought to Havana one day and executed the next. 
This shows the impossibility of there being any- 
thing like a trial, with a fair opportunity to con- 
test the proceedings. But we know in what the 
trial consisted, from the statements of resDectable 



Americans in Cuba at the time. Several officers 
went into the room where these men were con- 
fined and took their voluntary statements. They 
admitted that they had been in the Lopez expedi- 
tion ; and upon that admission the order was issued 
by the officers that they should be shot. Is that, 
a trial? Is that the trial contemplated by the 
treaty ? If it is, it is in vain to stipulate with a for- 
eign Power that our citizens shall be tried accord- 
ing to the laws of the land, with an opportunity 
to establish their innocence. We know that these 
men were not allowed to contest the jurisdiction 
of the pretended court; we know that they were 
not allowed counsel; we know that they were 
not permitted to have evidence, and we know that 
the whole thing was done in hot haste and in 
the spirit of revenge. Our Consul, Mr. Owen, 
came into town after they were condemned, inter- 
posed in their behalf, asked for a postponement, 
and for the release of some, if not all. The Cap- 
tain General refused to permit him to intercede for 
the prisoners, and told him he must know that he 
was doing so against the wishes of his Government. 
The officers of Cuba hurried their victims to 
slaughter; and if the letters from Havana can be 
credited, their bodies after execution were brutally 
desecrated by the mob. 

I think it, therefore, impossible to maintain that 
these men were tried by the regular tribunal se- 
cured to them by the treaty. But even admitting 
that it was regular to try them by a summary 
court-martial or any military tribunal, still I insist 
the treaty was violated; still I say that they 
did not have the benefits of the provisions guar- 
antied to them by the treaty in relation to trials. 
It contemplates a trial which is not a mockery. 
It contemplates a trial which allows the party his 
witnesses. It contemplates a trial which allows 
him counsel. It contemplates a trial which gives 
him a hearing and not a judicial butchery. 

Now, sir, it was asserted by the Spanish au- 
thorities — and it has also been asserted by this 
Administration — that if these men received such 
a sort of trial as Spanish subjects receive, then the 
stipulations of the treaty were complied with and 
secured to the criminals. 

Sir, the treaty is not admissible of such a con- 
struction. The very reverse is the object of the 
treaty, and the bare reading of its words is suffi- 
cient evidence of the correctness of that position. 
The treaty declares: 

" The citizens and subjects of both parties shall be al- 
lowed to employ such advocates, solicitors, notaries, agents, 
and factors as they may judge proper, in all their affairs, and 
in al! their trials at law, in which they may be concerned, 
before the- tribunals of the other party ; and such agent shall 
have free access to be present at the proceedings in such 
causes, and the taking of all examinations and evidence 
which may be exhibited in the said trials." 

If we admit that the court which tried Critten- 
den's men, being a military tribunal, had juris- 
diction of the case, still, I say, the treaty was 
violated in the trial. 'Because they were never 
regularly arraigned; because they were not al- 
lowed to plead to the jurisdiction; because they 
were not permitted counsel; and because they were 
not allowed the regular examination of witnesses 
in their behalf, according to all the accounts which 
have reached us. The treaty is a distinct substan- 
tive provision, as to the employment of counsel. 



10 



It secures the right to American citizens to have 
counsel of their own choice "in all their affairs, 
and in all their trials at lav/." It relates to all 
trials before all the tribunals, whether civil or crim- 
inal, whether military or ordinary. It is there- 
fore perfectly obvious that it never was the inten- 
tion of Mr. Pinkney and the Spanish Minister, 
when they negotiated that treaty, to put it in the 
powder of Spain, by transferring criminals to mili- 
tary tribunals, to deprive them of the right_ of 
counsel, the right of witnesses, the right of being 
present when the evidence was taken by which 
they were to be convicted. It is, therefore, in my 
estimation, preposterous to assume that American 
citizens, tried even before the military tribunals of 
Spain, can be deprived of counsel and witnesses 
merely because Spanish subjects are deprived of 
them. 

Why, sir, I need not say to any lawyer in 
this House, that, whatever may be the general 
law of Spain, a particular provision for the benefit 
of American citizens made by treaty, is the law 
of the case, and that it is the duty of the Spanish 
tribunals to administer it as the law of the case. 

I admit, that without such a provision, our citi- 
zens must be judged as the citizens of Spain are 
judged who have committed offenses within their 
jurisdiction. Suppose the Spanish Government 
passes an edict that when any one is believed to 
have committed felony, any officer of the army 
may order him to be shot without trial and without 
a hearing, does that abrogate our treaty with Spain? 
If the Cortes should pass a law declaring that no 
Spanish subject should have an advocate, agent, 
or counsel, on any trial before a Spanish tribunal, 
would it destroy, or in any way affect our treaty 
provision for the security of American citizens? 

Sir, the Cuban authorities did not take any such 
position as to Crittenden and the other followers 
of Lopez, whom they executed. That was left to 
the ingenuity of the present Administration and its 
defenders. They knew that these men had not 
enjoyed even the benefit of the laws of Spain for 
the trial of its subjects who were guilty of treason. 
They were not even tried before the council of 
war, nor did they have the benefit of the rules of 
proceeding which prevail in that military tribunal. 
The Cuban authorities assumed that these men 
were pirates, and that whatever violence was done 
them, they were not citizens of any country, and 
therefore this Government could not complain. 
Now, sir, although the President did not formally 
denounce these men as guilty of piracy, although 
the administration of General Taylor stands com- 
mitted upon the record of denying that the offense 
was piracy, yet in his proclamation Mr. Fillmore 
declared that " such expeditions can only be re- 
garded as adventures for plunder and robbery." 
Certainly such was not the object of the leaders 
of that expedition, and to say so was to do gross 
injustice to their motives and characters. He 
then proceeds to inform them that they " will 
forfeit their claim to the protection of this Govern- 
ment, or any interference on their behalf, no mat- 
ter to what extremities they may be reduced in con- 
sequence of their illegal conduct." In the first 
place this proclamation, by assuming the guilt of 
all parties in the expedition, anticipated the work 
of Concha's court-martial. .It incited the Spanish 
authorities to pursue the very course they adopted. 

If, sir, th^re was a provision in the treaty with 



Spain, which guarantied to American citizens the 
right of trial, the President could not give up that 
right unless they denationalized themselves by an 
act of piracy. He was bound to assert it for 
their benefit. The President cannot suspend the 
Constitution, nor treaty or laws made in pursuance 
thereof. On the contrary, he is compelled by his 
duty and oath of office to see them faithfully exe- 
cuted. It has been argued that the Lopez men 
had committed a heinous crime, and deserved to 
die; but men are not hung, in this country at 
least, by equity. The greatest criminals are as 
much entitled to the forms of law as the most in- 
nocent who are. accused. If a guilty man may 
be condemned unheard, and without a trial, there 
is no safety for the innocent. The example set 
by Spain in the case of the Lopez men, if ac- 
quiesced in, places it in her power to execute any 
American citizen without giving him a fair trial. 
It has practically abrogated the treaty. 

Again, sir, I disagree with the gentleman from 
New York [Mr. Brooks] as to another branch 
of this subject. In the case of Mr. Thrasher, he^, 
has taken the ground that he had become natu- 
ralized, or at all events taken the oath of allegiance 
to the Crown of Spain, and that, therefore, he had 
forfeited his right of American citizenship, and 
was liable to be tried as a Spanish subject, and 
was not entitled to the benefits of the provisions 
of the treaty. Such, also,was the position of the 
Administration in relation to Mr. Thrasher, and 
they appear to have abandoned him to his fate 
without a struggle. 

Sir, I am astonished that any one should take 
the position that Mr. Thrasher was naturalized, 
in view of the facts and the laws of Spain. What 
is the record, furnished by Concha himself, the 
Captain General of Cuba? It is, that Mr. Thrasher 
had not taken the oath of naturalization, and he 
summoned Mr. Thrasher before him when he at- 
tempted to publish a paper in Cuba in 1850, and 
prohibited him from publishing it, on the ground 
that he refused, when thus summoned, to take the 
oath of naturalization. He required him to dis- 
continue his paper, or take the oath of naturaliza- 
tion. Thrasher refused to take the oath of alle- 
giance to the Spanish Government, and was not, 
therefore, entitled to the benefits of the act of nat- 
uralization, and compelled to abandon his paper. 

Mr. BROOKS, (interrupting.) Will the gentle- 
man from Texas let me understand his point ? Did 
I understand him to say that Mr. Thrasher did 
not take the domiciliary oath which was required 
of him by the Captain General of Cuba? 

Mr. HOWARD. No, not the domiciliary oath. 
I admit he took that oath. 

Mr. BROOKS. I believe the gentleman under- 
stands Spanish; the oath which he took was an 
oath of fidelity and vassalage to Spain — juramento 
de fidelidad y vasallaje. Is not that so? 

Mr. HOWARD. No, sir, that is not so, if the 
gentleman means to assert that it was an oath of 
allegiance to Spain. 

Mr. BROOKS. He was obliged to take such 
an oath under the laws of Cuba, of 1817. 

Mr. HOWARD. I will set the gentleman right 
on that subject. In relation to that matter, gross 
injustice has been done Mr. Thrasher. 

What is naturalization? When is a man nat- 
uralized ? When he renounces the sovereign of 
his origin, and acquires the rights of citizenship 



11 



under the Government to which he transfers his 
allegiance. Now, what were the laws of" Spain 
in reference to that subject? I have here the reg- 
ulation of 1791, contained in the official documents 
accompanying the President's message. But this 
whole subject of settlement and colonization in 
Cuba was regulated in 1817 by a special law. It 
did not require Mr. Thrasher to swear himself a 
Catholic, as the gentleman supposes. It only re- 
quired satisfactory proof of that fact. The regu- 
lation is contained at length in a work of great 
authority recently published in Spain, entitled 
" Legislacion Ultra Marina."* 

The law of 1817, as to settlers in Cuba, is not 
unlike our own law of naturalization. It gives 
him five years to become naturalized, and gives 
him, in the mean time, the absolute right to return 
to his native land; and in case war broke out, he 
had the right to remove with all his property to his 
ancient home. At the end of five years he was to 
come forward to announce that it was his intention 
to remain perpetually in the Island, to prove his 
religion and his good conduct, and then to take 
the oath of naturalization, by which he was re- 
quired "to promise fidelity to the Catholic religion, 
' the King and the laws, renouncing everything 
'foreign; all privileges and protection that would 
' arise from being foreigners, and promising not to 
' retain any dependence, relation, or civil subjec- 
' tion to the country of thfir birth." This was 
complete naturalization, but could only be acquired 
after proof of five years' residence. He was then 
furnished with his naturalization papers, and the 
law declared that "naturalized strangers shall 
enjoy all the rights and privileges of Spaniards." 
But this oath Mr. Thrasher refused to take when 



* Naturalization law of Spain in Cuba. 

1st. All the strangers belonging to friendly Powers or na- 
tions who wish to establrih themselves, or who already are 
in the Island of Cuba, must make it clear by the proper 
means to her Government that they profess the Roman 
Catholic religion, and without this indispensable circum- 
stance, they shall not be admitted to domicile themselves 
there ; hut as to my subjects of these dominions and of the 
Indies, they are not obliged to prove this, because that, in 
respect to them, there cannot be any doubt as to this point. 
. 2d. As to the strangers who are admitted according to the 
preceding article, 'he Governor shall receive from them an 
oath [juramento de fidelidady vasallaje] of fidelity 'and sub- 
mission, in which they shall promise to comply with the 
laws and general orders of the Indies to which the Span- 
iards are subject. 

3d. When the first five years are past from the establish ment 
of these foreign colonists in the Island, and they shall then 
enter into an obligation to remain perpetually in it, all the 
privileges and rights of naturalization shall be conceded to 
them, likewise to their sons whom they shall have brought 
with them, orwlio shall have been born intbesame Island, 
in order that they may consequently be admitted to the hon- 
orable employs of the republic and the militia, according 
to the talents of each one. 

5th. During the -first five years, the Spanish or foreign 
colonists shall have the liberty to return to their former coun- 
tries or ancient residences — and in this case they shall be en- 
tiiled to Take from the Island all the property and goods which 
they shall have brought into it, without paying any dues 
whatever, for taking them away — but of those which they 
have gained in the above-mentioned time, they have to con- 
tribute ten for a hundred. 

9th. The liberty of the foreign colonists to return to their 
countries or ancient residences during the first five years is 
absolute, without limitation or condition, and they shall 
be able to take away their property, or dispose of it as they 
shall see fit. 

In the case of war with the Power which is the natural 
country or sovereign of the domiciliated colonists, these do 
not lose the rights and advantages of their domicile in the 
Island of Cuba, although the five years from their establiaJi- 



summoned before the Captain General, and it is 
therefore res adjudicata, in his office, that that gen- 
tleman was never naturalized, but refused to sur- 
render his allegiance to the United States, and was 
in consequence refused the rights of a naturalized 
subject of Spain. 

And now as to the domiciliary oath. It does 
not profess to be an oath of allegiance; and if it 
did, it would be in violation of the Spanish laws. 
It would confer no right on Mr. Thrasher, and 
would subject him to no loss of privilege as an 
American citizen. The domiciliary oath required 
him to swear fidelity to the laws of Spain and the 
Indies. It was, in truth, no more than the decla- 
ration required by our law of an intention to be- 
come a citizen, accompanied by an oath. Indeed 
it was not so much, as the Spanish law did not 
require such an intention to be declared. I am 
aware the form of oath furnished in the executive 
document, which was palmed off upon Mr. Web- 
ster by the Spanish authorities, purports to be an 
oath of allegiance; but if Mr. Thrasher ever took 
such an oath it was extra-judicial, and not author- 
ized by the law, and gave no right. It was obvi- 
ously a form of oath which had been made under 
the law of 1791. 

The second section of the law of 1817 contains 
the whole regulation in force at the time of Mr. 
Thrasher's domiciliation. By that law he took, 
in the language of the law, " an oath (juramento 
defulelidad y vasallam) of fidelity and submission, 
' in which they shall promise to comply with the 
' laws and general orders of the Indies to which 
' the Spaniards are subject." It is noticeable that 
while one of the translations from the Department 
correctly renders vasallaje submission, it translates 

ment shall not have passed. Their property shall not be 
subject to embargo, sequestration, or any other of the pro- 
visions, ordinary or extraordinary, of the state of war. 
Those who, notwithstanding the war, wish to remain per- 
manently in the Island, to accomplish their five years and 
naturalize themselves, shall be allowed to do so with perfect 
liberty, being of credit, good lives and customs. To those 
who prefer to absent themselves, sufficient time shall be 
conceded, so that with ease and convenience they can regu- 
late their affairs and dispose of their property, being allowed 
to carry away all the property they brought with them, or 
an equivalent thereto, without payment of any dues what- 
ever — and paying 1'or what they have sained since, ten for a 
hundred, according to the 16th preceding article. 

24th. The five years being past, and the foreign colonists 
wishing to naturalize themselves, shall repair to ihe Govern- 
ment with their letters of domicile, and the'y shall manifest 
that they oblige themselves to remain perpetually in the 
Island. The Government shall take the proper means of 
information, and their good qualities being certified, their 
continued residence for five years, landed property or in- 
dustry, they shall be admitted to take the oath of naturali- 
zation, in which they shall promise fidelity to the Catholic 
religion, the King and the laws, renouncing everything 
foreign, all privilege and proteclion that would arise from 
being foreigners, and promising not to retain ferry depend- 
ence, relation, or civil subjection to the country of their 
birth — with the explanation, that this renunciation does 
not comprehend the relations or domestic correspondences 
of family or relationship, neither the economies of goods or 
interests, which every citizen stranger can maintain ac- 
cording to the royal schedule, and instruction of the 2d of 
September, 1791, and circulars since. 

25th. With the declared requisites the Government shall 
expedite the letters of naturalization, by form of which they 
shall find the order in the royal exchequer ay untamiento, 
and respective territorial jurisdictions, without costs or 
dues, as in the letters of domicile. 

26th. The naturalized strangers shall enjoy all the rights 
and privileges of Spaniards, as likewise their sons and le- 
gitimate descendants, according to the 15th article of the 
preceding. 



12 



fidelidad, allegiance instead of fidelity; but nothing 
is ifgained by this translation, as it is allegiance to 
the" laws, and not to the Crown of Spain. It is 
nothing more than the law of nations, under which, 
if a man comes here, he is bound to obey and not 
to violate our laws; but that does not make him a 
citizen of the country. It gives him none of the 
rights of an American citizen; for the principle is 
too plain to be controverted, that no man can be 
naturalized in a country until he complies with the 
laws and institutions of that country, which con- I 
fers upon him the rights of naturalization. Mr. 
Thrasher did not do that. He refused to do it, 
which Concha himself admits. It is true Concha 
says he was something more than an American 
citizen; that he was domiciled, and had taken an 
oath to obey the laws and orders of the Indies to 
which Spanish subjects were compelled to sub- 
mit; but he was careful not to say it was the oath 
of naturalization. 

I have chosen to place this matter on the indis- 
putable ground that Thrasher could not become 
naturalized without renouncing his former alle- 
giance, and taking upon himself the allegiance of 
Spain, according to the Spanish laws. The judi- 
cial doctrine of this country goes the length of 
saying that no one can lose his allegiance until a 
method is provided for effecting it, by an act of 
Congress. Chancellor Kent, after a review of all 
the decisions, thus states the law: 

"From this historical review ofifche principal discussions 
in the Federal courts on this interesting subject in American 
jurisprudence, the better opinion would seem to be, that a 
citizen cannot renounce his allegiance to the United States 
without the permission of Government, to be declared by 
law; and that, as there is no existing legislative regulation 
on the case, the rule of the English common law remains 
unaltered." 

Concha rested the right of Spain to try Mr. 
Thrasher in the manner he was tried on the ground 
that the military tribunal by which he was tried 
was a regular tribunal of the Island of Cuba, 
created by law. What was it, sir? It was com- 
posed of a brigadier of the army, and six other 
officers. 1 shall not repeat what I have said in 
relation to there being no right to try an American 
citizen before a council of war; but I will content 
myself with this position, which cannot be suc- 
cessfully refuted: Although it were a regular tri- 
bunal, and had the right to try him, he was enti- 
tled to his counsel, his witnesses, his proofs, and 
his defens'e. I have never heard his own pub- 
lished account of the trial denied, as a truthful 
statement of the facts. It was communicated to 
Congress by the President. Mr. Thrasher says: 

" On the 21st October, I was thrown into a dungeon of 
the city prison, and all communication with any person 
strictly prohibited. On the 23th, I was removed to my 
present dungeon, and the fiscal of the military tribunal made 
his appearance and began a judicial examination'. . On the 
26th ultimo this was continued, and then I saw no one until 
the 4th instant, when the question was proceeded with, and 
on the 6th I was again questioned, and finally informed that 
I was accused of treason. At the same time I was required 
to select one from a list of officers that was presented to 
me, who should conduct my defense. Not knowing any of 
them, 1 chose at random, supposing he would consult with 
me and with my legal advisers, as is usual in such cases, 
in regard to my defense. On the 7th instant, I was, for the 



first time, allowed to see my friends, and to consult with 
them as to the best course to pursue. 

" I conferred with our consul, and he passed several com- 
munications in my behalf to the Government here, all of 
which have been utterly disregarded and not replied to. On 
the 11th, I was informed that I was to be brought up the 
next day for sentence. I immediately wrote to my nominal 
defender, requesting him to come at once to consult with 
me, and to bring with him the proceedings, which are in 
writing. He replied, verbally, that he would come in the 
afternoon. He did not come, and I extended at once a pro- 
test against the proceedings, alleging that I had not been 
heard, and that neither myself nor my legal advisers had 
been consulted for a proper defense. I sent this to the 
president of the military commission that night, who refused 
to receive it, saying, it could only be admitted by the Cap- 
tain General. 

"The American consul, Mr. Owen, as soon as informed 
of this, proceeded to the palace and protested against sen- 
tence being pronounced, as I had not been heard in defense. 
In the morning, my nominal defender came to my prison to 
inform me that he had been allowed by the court only twenty- 
four hours to prepare my defense; that he had been occupied 
until that moment examining the proceedings, which are 
voluminous, and that within an hour he must return them 
to the fiscal. 

"On the 12th I was taken before a court-martial, com- 
posed of a brigadier geneftil and six officers of Ihe army. 
The testimony and proceedings were read be'ore I was 
brought into court, which is contrary to law and to custom, 
and when brought in I was asked what I had to say to the 
charges against me? I replied, I had not been furnished 
with a copy of the charges ; that I had been denied access 
to the proceedings and testimony ; that my nominal defender 
had neither consulted with me' nor with my counsel, and 
that I now asked that my protest and petition for stay of 
proceedings should be admitted. I was told by the presi- 
dent of the court, that it should be considered. I was then 
removed to my dungeon, and heard nothing more of the 
proceedings until to-day, when I have been formally notified 
that I have been sentenced to eight years labor in chains at 
Ceuta, in Africa, with payment of costs." 

Do you call such a proceeding a trial according 
to the usual course of proceedings? Do you call 
that complying with the provisions of the treaty? 
I can tell my friend from New York, that an argu- 
ment of that sort will not prevail with any lawyer, 
because the treaty is positive that he shall have 
counsel, which was violated in this case. They 
would not let him select his counsel from Spanish 
subjects generally. They furnished him with a 
list of Spanish army officers from whom he was 
to select one. He selected, as he has said, at ran- 
dom, not knowing a thing aboutit. That Spanish 
officer, as a matter of course, instead of defending 
the accused, did everything in his power to convict 
him. 

It is evident that the provisions of the treaty 
were denied him, not only as to counsel, but as to 
being present at the taking of the testimony, which 
was taken in writing outof court. He was notfur- 
nished with a copy of the charges which, together 
with the written testimony, was read over in court, 
and then the prisoner was brought in and asked 
what he had to say for himself. It is obvious 
that he was not allowed a defense but condemned 
unheard. 
a The excuse rendered by the Cuban authorities 



IB 



for not allowing Mr. Thrasher counsel was, that 
no counsel was permitted to appear in these cases 
before the military court, because it produced de- 
lay. It held back the victim from the " garote," 
and from chains, and the mines. Such an answer 
may content the present Administration; but it can 
hardly be a legal answer to a positive requirement 
in the treaty, that American citizens shall be al- 
lowed to employ such advocates and solicitors as 
they may judge proper in all their affairs, and in 
all their trials at law. Neither can it be a very 
satisfactory reply to an American, to assure him 
that all Spanish subjects are made victims of a 
similar barbarity. 

It was not the usual course of proceeding, be- 
cause no Spanish subject arrested as Mr. Thrasher 
was, could be tried before the council of war. The 
present laws of Spain, as stated in the work to 
which I have already alluded, declare: 

"That conspirators being apprehended by the parties of 
troops, detailed for that purpose by the government, shall 
be judged by the ordinary council of war ; but by the ordi- 
nary jurisdiction, if they were apprehended by the order ol 
requisition, or in aid of the civil authority, except in case 
of resistance by the criminal to the troops. Then they shalr 
likewise be judged militarily. In all other cases, according 
to article thirteen, the offenders who commit these crimes, 
shall be judged by the ordinary jurisdiction, even when the 
apprehension shall have been made by armed force, but 
with loss of special privilege. And in article fourteen, it is 
provided in the trials by this law, there shall not be any au- 
thority whatever, except such as shall be exercised by the 
ordinary and military jurisdictions, according to the limits 
which are here shown." 

Mr. Thrasher's was not a military arrest. He 
was taken in the first instance to the office of po- 
lice, and was in custody of the chief of police. 
His case was subsequently transferred to a mili- 
tary court. He was tried, therefore, in violation 
of the Spanish law, which gave jurisdiction of 
such a case only to the ordinary tribunals. The 
same remark is true of all those prisoners who 
came in and delivered themselves up under the 
proclamation of the Captain General, and of 
Breckinridge and Beach, of Kentucky, who were 
arrested at sea by a Spanish merchant ship, en- 
deavoring to make their escape. Neither of them 
were military arrests, or made under such circum- 
stances as gave the council of war jurisdiction of 
their cases. 

The arrest of Breckinridge and Beach was a 
violation of the law of nations. Those gentlemen 
were in the Lopez expedition, but had made their 
escape in an open boat, and were a long distance 
from Cuba — outside of the league which limits the 
jurisdiction of any nation over the ocean — when 
they were captured by a Spanish schooner and 
brought into Havana. Concha, the Captain Gen- 
eral, in reply to Commodore Parker, said that 
these men were pirates, and that he would try 
them as such. Now, the Spanish Government 
had no more right to seize those two men where 
they were captured, than it had to seize them in 
the streets of Washington city, unless the offense 
leas piracy. They were, under these circumstan- 
ces, brought into Havana and condemned by this 
military tribunal, which had no jurisdiction over 
them. I admit that, if they had returned volun- 
tarily within the jurisdiction of the Island, they 
might have been tried by a competent court under 



the treaty. But having been arrested in violation 
of the law of nations, it was the duty of the Cap- 
tain General to discharge them, and the duty of 
thisGovernmnt to demand their release. 

The same was the case with the Contoy pris- 
oners. They had only imagined a conspiracy, as 
we find in the old English books, that one used 
to be held guilty of treason who imagined the 
King's death. If anything criminal was fastened 
upon them, it seems that they only contemplated 
an expedition to Cuba. They were outside of the 
Spanish jurisdiction, anchored near an island in 
the sea, under the jurisdiction of Mexico. They 
were seized, and the Spanish authorities main- 
tained that they had jurisdiction over them, be- 
cause they were pirates. I believe that these pris- 
oners were subsequently released, but that the 
vessels were not; and I understand from the hon- 
orable gentleman from Maine, [Mr. Smart,] that 
that subject remains now precisely where it was, 
and that the Government has taken no very effi- 
cient means to enforce satisfaction to the owners 
of those wrongfully-seized vessels. Let us make 
compensation, by an appropriation, to the Spanish 
Consul at New Orleans, whose property was de- 
stroyed by the mob. But let us also demand sat- 
isfaction for those violations of national law, and 
for the injuries which our own citizens have sus- 
tained in consequence of the violations of our treaty 
by the Spanish authorities. 

A few observations in reply to the remarks of the 
gentleman from New York on the Crescent City 
affair. It seems to me to be undeniable, that it is 
not within the power of Spain to construe the treaty 
so as to break down the commercial intercourse 
between the two countries. Undoubtedly Spain 
might exclude a person from her shores dangerous 
to her safety. But the power must be exercised in 
reason, and not capriciously, They had the right 
to say that JVIr. Smith should not land, but they 
had not the authority to say that the vessel should 
not come into port and discharge its cargo, and land 
its passengers and mails. It was not alleged that the 
ship, passengers, cargo, and mails were dangerous 
to Cuba, or even obnoxious to its authorities. They 
had no right to deny communication with the ship, 
unless its officers or crew had committed some of- 
fense against the revenue or other laws, and even 
then the remedy was by seizure and proceeding in 
admiralty. Mr. Smith exercised the right of every 
American citizen, guarantied by the Constitution, 
to publish his own opinions, if he exercised any 
right at all. He denies, however, having pub- 
lished anything. If he continued going there with- 
out landing, or violating their order not to land, 
from now to the day of judgment, and observed the 
institutions of Spain in Cuba, he might, when he 
returned home, have published his views, and Spain 
had no legal right to complain; it was no offense 
against her laws or jurisdiction. If she had a 
right to complain, she could only proceed through 
the judicial tribunals of this country; that might 
have been done in this country, as it was in Eng- 
land, in the case of Peltier, for a libel on Napo- 
leon, and on the common-law principle of the 
greater the truth the greater the libel, there is no 
doubt Smith would have been severely punished. 
But to deny all commercial intercourse — to deny 
that the passengers should be landed, and the mails 
received, because "the individual, William Smith," 
published falsehoods in this country, relative to the 



14 



Spanish authorities in Cuba, is too ridiculous an 
idea to be entertained by any man but a Spaniard. 
I admit if the authorities of Cuba had addressed 
themselves to this Government in the first instance, 
through the Spanish Minister, and requested that 
that individual should not be permitted to go 
on a semi-official vessel, as a matter of courtesy, 
the request should have been complied with. But 
what right had the Spanish authorities in Cuba 
to take a matter for the diplomatic agents of the 
Governments into their own hands, and exclude a 
vessel from commerce on such frivolous pretense? 
Commercial treaties are worth nothing if our com- 
mercial marine can be dealt with in that manner 
with impunity. 



Sir, I have made these observations, not because 
I entertain any sentiments of hostility to the pres- 
ent Administration, but because I wish to draw 
attention to the gross manner in which the rights 
of American citizens are trampled on by other 
Powers. Its frequency has erected itself into im- 
punity. The time has arrived when the American, 
like Briton, should feel the protection of his coun- 
try's flag in the remotest corner of the globe. 
That Government which does not protect its own 
citizens against foreign oppression, will soon sink 
beneath their contempt, and the scorn of the civil- 
ized world. The time has arrived when new life 
and energy should be infused into our foreign 
relations. 



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